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This Week in Law 276 (Transcript)

Denise Howell: Next up on This Week in
Law, we’ve got two great guests: Ben Manevitz and Colin Starger joining me.
We’re going to talk about iPhone 6 and hey, Apple and Google jumping on the NSA
proof bandwagon. The monkey selfie photographer stops by again, this time in 3D
form. We’ll talk about Netflix and VPNs, Microsoft buying Mind Craft. Lots lots more on This Week in Law.

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Denise: This is TWiL, This Week
in Law with Denise Howell and Evan Brown. Episode 276 recorded September 19,
2014.

Thanks For Some of the
Fish

This
episode of This Week in Law is brought to you by Personal Capital. With
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to personalcapital.com/twil. Hi folks, Denise Howell here. And you’re joining us
for This Week in Law. Really really fun and exciting panel today; co-host Evan
Brown is going to join us midstream. Just you’ll have to wait for Evan who’s
always one of the very best parts of the show of course. But we’re going to go
ahead and start this show off live and on-time here at 11am Pacific or a little bit after here in California time. And introduce our guests
to you and jump right into it. So today, we have Ben Manevitz joining us. Ben
has his own law firm, the Manevitz Law Firm in New Jersey where he focuses on
intellectual property laws, specifically trademark and domain name stuff. He
has a keen interest in copyright as well as I think we’ll get to in the show.
He’s done 10 years at lots of different law firms and also at EFF. So Ben, it’s
great to have you on the show.

Ben Manevitz: Thanks a lot, Denise. It’s
great to be here.

Denise: Also joining us this week is Colin Starger. Colin
teaches at the University of Baltimore-School of Law where he specializes in
civil procedure, criminal procedure, and guilt and innocence. Innocence and wrongful convictions. So all those times on
this show when we say gee, we’re not really specialists or experts in criminal
procedure and search and seizure and all that stuff, Colin is. So it’s great to
have him on the show.

Colin Starger: It’s great to be here,
thanks.

Denise: Wonderful to see you. Let’s get right into it and
talk about an interesting development to our audience. And folks who do the
kind of thing that we do, the personal audio case
which settled with Adam Corolla. He actually went to trial with one of the
broadcaster defendants and of course that deals with patents. So in the last
few weeks, we’ve been discussing this settlement with Adam Corolla who raised a
bunch of money and was going to go to the mat, fighting the case against him
and the validity of the personal audio patent which claims to cover activities
such as we’re engaged in now. Syndicating audio and video in
various forms. Ben, you’ve been taking a look at this. I think this is a
really bad decision. First of all, for people who aren’t up to speed on what
happened at the trial, can you tell us who was involved and what did happen?

Ben: The short form is personal audio is a
non-practicing; they acquired this patent, I don’t
really know or remember how. I don’t think I was that interested when it first
started. But they acquired the patent and have been chasing down a number of
different players, including Adam Corolla. And particularly
in this moment, CBS. Coming after them, well in this instance, they’re
coming after them for the providing of podcasts, making an episodic computer
files available. The claims are the last things in the patent. And it was just
a jury verdict that found infringement on the claims that were relevant to this
particular case. I think what’s upsetting at least to me, what bothers me about
this case is this patent is really broad. I keep looking down, I’m flipping through the book. I’m sorry. But it’s very broad in that it seeks
to lay claim to a lot of territory. It’s a land grab on podcast broadcasting,
receiving a podcast is actually and earlier claim; a mechanism by which to
receive essentially a podcast. So everybody who got the iPhone 6, they’re all
in violation. They’re all infringing. For whatever reason the
jury got to this question without a radical determination of the validity of
the scope of the patent. And I think that’s the biggest concern that I
have. CBS put in a rule-50 motion judgment before the verdict. Judgment as a
matter of law, rule-50, motion before the verdict came
in. So there’s an opening for the judge to issue what’s called a JNOB. But
right now CBS is in a bad position. I mean the jury has found it to be
infringing. There’s still a damages component that needs to be gone through. So
it’s not totally done for CBS but it’s a problem.

Denise: Right. $1.3M in damages is what the jury awarded.
CBS is in some ways a nicer party, sorry CBS, to have this happen to than
someone like Adam Corolla or a smaller person engaged in distributing content
episodically. Because presumably CBS will take this to the Federal circuit and
challenge the decision. We can look down the road to that kind of review of
this particular decision. And also EFF is challenging the very broad patent
itself at the patent office. And that will continue. Have you been following
the patent challenge itself, Ben?

Ben: I haven’t been following the patent challenge on
EFF; it’s way more technical than I normally would
want to read in. There are sort of two issues though. One is procedurally,
there’s a question because now that the jury verdict has been brought down in
the CBS case, if the EFF challenges is successful afterwards, there’s a
procedural question as to what that does for CBS. So it might end up that CBS
is still giving malted for damages even though the patent is determined to be
invalid. Which I think on a fair reading of the facts that are available,
patent should eventually be; I’m not making any predictions because you never
know, but the patent is probably overbroad and probably anticipated. The
problem actually that CBS had and that the EFF is going to have, is with a lot
of the citations that they’re bringing in to claim anticipation and to show
anticipation or obviousness; their citations or practices that are not normally
or not traditionally understood by the patent office to be citations. So there’s whole sections for CBS judgment as a matter of law
brief that have to convince the court that an online publication is actually a
publication adequate for anticipation. Or that a practice of a website is a
practice that can be counted as anticipation or publicly known that suffices to
anticipate. It’s unfortunate, I think it’s a question
of the law having to catch up with technology. But with that said, I think the
fact that they have the rule-50 motion in puts CBS in a good place procedurally
which is a little bit of inside baseball. But it opens them up for not paying
the damages if the patent is found invalid in another proceeding. It’s good
that CBS has the money to defend, and it’s really good that the EFF is fighting
it. And there’s some good people working on that project.

Denise: Right, and the EFF also points out along the lines
of taking it up to the Federal circuit that we shouldn’t be too skeptical as to
how that might go. We had Lee Chang on the show who is a wonderful
saber-wielding lawyer at Newegg. And figuratively or who knows literally as
well. Newegg challenged a shopping cart patent lost after a five-day trial in
the same district, the eastern district of Texas. But took it
up to the Federal circuit who found that no reasonable jury could have held
that patent valid. The EFF is very much saying stay tuned, stranger
things have happened. So we’ll just have to watch what happens here. I do think
that’s really interesting that they’ve had to brief extensively for the court
what sort of online or computer-based evidence would be sufficient to prove or
disprove the patent. Colin, do you have any thoughts on this before we move on?

Colin: You know I like seeing CBS and EFF on the same
team. It’s kind of different, but no thoughts other than that.

Denise: Good to note. I think that they sometimes wind up
on the same team on fair use kinds of issues as well. Maybe
not CBS specifically but the entertainment industry and EFF. So that is
something that’s good to see. Alright, let’s move on since everyone is all
buzzed and we already have watching live on Friday the 19th, Leo in
the studio earlier this morning unboxing the iPhone 6’s. We have some good
privacy things to discuss along those lines. So let’s do it. Last week we were
talking about the health component of the iPhone 6 and also the Apple watch.
And the auto pay functions. And they obviously have a host of privacy concerns
that we were getting into last week. This week I’d like to think about the
iPhone 6 in a slightly different context given the open letter that Apple put
out. And various press coverage in its wake about the new encryption that iOS 8
features. And the fact that Android phones at least Android phones that will be
released in the future are going to follow suit. Which means
that both kinds of phones will have very strong encryption that reminds me of
the show that we did on episode 257 with Bruce Schneier.Where we were talking about iDrive. I had been driving up
around the San Francisco area and there was this huge billboard looking out
over the 101 freeway coming into San Francisco touting iDrive as a safe route.
And we got into a big discussion with Bruce Schneier about whether that could
really be the case. And also about the whole concept of having secure data in your devices that is somewhat shielded or
entirely shielded. And we can get into a discussion of how much protection this
really offers. From government intrusion, using that as a
marketing tool. And iDrive was definitely jumping onboard with that. Now
it appears the big players of Apple and Google are doing the same. This is very
much a selling point for Apple, that if you’re using this operating system they
will not be able to respond to government subpoenas asking for information that
might be accessible from your device. So that’s a big shift from the way things
have gone and it actually changes things a bit even from what we thought was a
savvy opinion from the U.S. Supreme Court in June; holding that police need a
search warrant to begin to access the data on your phone. With this, the
Washington Post has written, I’ll just go ahead and
quote it for you; in June the Supreme Court ruled that police need search
warrants to gain access to data stored on phones in most circumstances. But
that standard is quickly being rendered mute. Eventually no form of legal
compulsion will surprise to force the unlocking of most smartphones. So let’s
start with Colin. Colin, what do you think about this from the standpoint of
criminal procedure and law enforcement?

Colin: I’m a little conflicted about it to be honest,
Denise. I started off with my first reaction with this is great. It’s another
way to keep the government out of where they shouldn’t be. And it’s moving in
the direction to make the whole question of getting a warrant redundant. As was
suggesting in the article you spoke about. But then I read a couple of things
including a commentary by Warren Care and he made what I thought was a very
interesting point. Which is that in a way, what Apple has done is thumbing its
nose at the whole idea of getting a warrant. In a way, what it’s doing is
circumventing the law and a lawful process. In other words, when you talk about
the Supreme Court’s decision last June, the Riley Decision, they made what was
an excellent unanimous decision saying if you want to do this, get a warrant.
And the old idea that on an individualized case basis, if you have some kind of
individualized reasonable suspicion that the judge will look at the evidence
and determine if there is enough to go forward for a particular prosecution,
that’s a bedrock principle. And as Fourth Amendment lawyers or criminal defense
attorneys, they generally want to do everything they can to make the Fourth
Amendment and the warrant requirement stronger. Now by making it redundant or
going right around it, the question is raised if only hypothetically whether
they’re eroding the general principle of forcing the police to act lawfully.
And the point has been raised that now it’s not like people won’t try to hack
through it. Hack through these different systems. The answer though is that
doing it through what you would want to be the normal process of getting a
warrant if you’re the government, just is no longer done. So it might
potentially encourage illegal behavior. Like I say, I’m conflicted. I’m not
totally buying that argument but I do think it raises an issue that you need to
think about: do we want to do things to force the government to act in line
with the old way which may still be a good way, which is if you have a decent
suspicion, you need a warrant. If we get rid of all the incentives to even have
a warrant at all, it might have ripple effects in other areas of the law that
might not be good.

Denise: Is there any recourse on the part of law
enforcement against Apple and Google if they do this? Can states or the Federal
government come in and enact laws and say you need to be able to allow us to
serve a warrant and get that data. That this is a step too
far in guarding user privacy, security. We understand your impedance for
it but it keeps us from doing our jobs. Do you expect that we might see some
sort of legislation along those lines?

Colin: I can very much imagine a desire to push
legislation along those lines. And depending on who leads that charge, it could
be some horrible legislation like we’ve seen with the Patriot Act or other
extremely oppressive cases. And certainly Congress can do whatever it wants in
the legislative arena. Just how constitutional it is will have to be decided
when there’s a challenge brought to that law. Although the average bet is that
the laws are upheld. That’s not to say that if they dropped a particular
draconian one, I think that if it was just standing on a blank slate, Google or
Apple, in this particular case Apple but Google soon given the way it’s being
marketed as you pointed out earlier, they have every right to do whatever they
want to their own device. It’s their own property.
They can send it out to the world however they want. But the argument will be
put forward that these things, a lot of the data goes over public networks or
lines, that once in the public there is some public right to know. The law can
get a little bit murky and the idea that it’s just Apple’s property or Google’s
property, or the individual’s property can get challenged with the way the
packets get sent hither and yon. So I think there are weaknesses there and I
think that the way you introduce this segment by referring to an earlier
conversation about how the market at play here is kind of odd. I think you have
to think that they reasoned with the marketers before they reasoned with the
people who were thinking about the long-term stability of U.S. law enforcement. Which is unsurprising.

Denise: Ben, do you think this is bad or potentially
dangerous?

Ben: I mean good and potentially dangerous is a harder
question than I want to answer right now.

Denise: Maybe it’s a little bit of both.

Ben: It’s a little bit of both. It’s like any fifth amendment, you always get the horrible case situations that
you can, oh if only the policy could have done that and found out. It’s always
children, to save children. And then on the other hand, I would like to be able
to walk down the street; I am used to the civil liberties as a citizen of the
United States, I am used to certain civil liberties. And I feel invaded when
those are trampled. So there’s a balancing act. Just two
quick… one point and one question. Android, there was just an announcement
in the past day or two that the next version of Android is going to do the same
thing. So it is now Google and iOS, they’re both doing it. And wasn’t there a
situation like two years ago when it came up that the courts forced you to give
up your password? I don’t know necessarily how that would play in in terms of Fifth
Amendment concerns. If you can’t obtain the data without a warrant, look
straight. And now with presumably with a warrant or some sort of traditional
intervention or decision-making, they can force you to give up your password. I
think that sort of obviates the concern. I think what’s really happening here
is both Google and Apple are off-loading the responsibility. They’re saying we
no longer want to be the good guys or the bad guys. We’re going to give you the
ability to protect your own data. And if you don’t like what the government is
doing, that’s between you and the government. I also think there’s still the
open question that even though the phones themselves are encrypted, the cloud
backups of those are still… if they are encrypted they’re still under control
of the parent company. Unless iCloud gives you a password and Google doesn’t
have that ability; I’m sorry, Apple doesn’t have that ability to…

Denise: I think that’s what Apple’s claiming.

Ben: Even in the cloud?

Denise: I think yes. And here’s the open message from Tim
Cook: security and privacy, this is reading from it, security and privacy are
fundamental to the design of all our hardware, software, and services, including
iCloud. And new services like Apple Pay. So he’s definitely lumping it in with this message that we’re going to secure your data and then there are
some detailed sites to go to from there at the end of his open letter. Correct
me if I’m wrong chat room or anyone else, but I am assuming that Apple is
trying to put the hones as you were suggesting Ben, that they want to get out
from being in the evidence providing business. That they want
to make that relationship direct between law enforcement and their customers. Which does get us into the okay, under what circumstances can the government
force you to turn over your decryption key. And we have a bit of a split on
that in the U.S. don’t we, Colin?

Colin: I believe we do although I’ll admit that I haven’t
studied that case recently. But what it comes down to is you can be held in
contempt for not doing it, for not providing the password if you’ve been
ordered to do so. But the government isn’t actually going to be able to force
you to do it. I think Ben raises, I mean physically force you to do it. They
don’t have that level; violence has not been authorized, thank goodness. I
think Ben raises a really good point and you echoed it first, just trying to
get out of the business and leave it between law enforcement and the citizens
directly. But second, when he was referring to the two competing scenarios, the
ticking time bomb scenario where you have to get into a phone to stop a bomb
that’s going to blow up some innocence. Or as he said,
children. And then on the other hand, what the government often normally
does, or often depending on how you view government, spying on people that they
shouldn’t be spying on at all. In some ways, it comes down to what your
presumption is. If you have a rosy view of what government does and you think
generally they’re in the business of stopping the ticking time bombs; or if you
have a my cynical view and think they’re more interested in snooping for
reasons that are dubious at best. And there I tend to fall on the side of dubious
at best which is why after this discussion I’ll go back to thinking this is
probably a good move like I said. Right from the beginning, I admitted I was
conflicted so I had to go around the merry go round on that one.

Denise: That’s great. Do you think it makes a difference,
Colin, what technology is being used to encrypt the data that law enforcement
wants to get at? And I’m specifically thinking of a passcode versus some sort
of biometric.

Colin: I think it would make a difference on the ground, right?
If there’s a biometric, the case law’s pretty clear and there’s another case
that’s probably heading up to the Supreme Court now. That you can take DNA, for
example two terms ago Maryland versus King, you can just pawn being arrested.
The take can take your DNA from the inside of your Jeep with the buckle swabs
and throw it in a database to see if you’ve committed any other crimes. The way
that opinion was written, unlike Riley which was the cell phone warrant case,
Riley was a 9-0 case. Maryland versus King was a 5-4, much more contentious.
Just as Skilea wrote the decent in that case, and as he very correctly pointed
out the line that they attempted to draw in Maryland versus King; it was about
an arrest for something serious, that line isn’t going to hold up at all. So
what that means is that really there’s no decent constitutional barrier in
place right now for the police on any kind of suspicion that all taking
somebody’s DNA. If they take the DNA and can use that to gain access
biometrically, it’s quite different than a passcode. I think practically it
would make a big difference. Similarly, I think it wouldn’t let you torture
somebody to get their password, but there probably wouldn’t be a lot of
barriers in place for forcing them to put their finger on the screen to unlock
it. There are plenty of legal challenges but I suspect that once they got
whatever they want inside the phone by forcing to put their fingerprint there,
once they got it and that came out and they saved the baby or stopped the ticking
time bomb, the courts would somehow find a way to justify it.

Denise: Saving children always comes up. Can I ask you
from your lens of spending a lot of time considering wrongful convictions and
what sort of evidence makes good evidence; do you think this kind of
development will contribute to the wrongful conviction problem? Because it’s
going to be harder for law enforcement to get the evidence that they think
might prove or disprove?

Colin: The Fourth Amendment falls into a funny place in
wrongful conviction law. Generally speaking when you look at the causes of
wrongful conviction, the big ones are eyewitness misidentification which
definitely doesn’t come under the Fourth Amendment. Really
junky forensic science, which really doesn’t come under the Fourth Amendment. And police misconduct which generally speaking doesn’t come under the Fourth
Amendment. The great irony of the Fourth Amendment is that it’s there to
protect people that aren’t engaged in criminal activity. However in order for
those protections to be there, you have to protect people that are engaged in
criminal activity. Just by its very nature, you’re not going to have a
challenge to evidence being gathered by the police being challenged under Fourth
Amendment grounds; that they should have gotten a warrant or they shouldn’t
have gotten it at all unless it’s somehow incriminating. So most of the Fourth
Amendment cases that go all the way up to the Supreme Court generally involve
people who have evidence of guilt that’s been found by violating the Fourth
Amendment. And the question is given the police didn’t know that’s what it was
going to show ahead of time, should they have been allowed to do it in the
first place? And the interest at heart is thinking about well what if it was
actually an innocent person. Do you see what I’m saying? I tend not to think
that this kind of warrantless activity, the main problem is that it’s going to
lead to more wrongful convictions. The main problem is that it leads to erosion
of civil liberties. What we need to do to correct wrongful convictions is
another conversation. It’s one I’m really willing and happy to have. I just
don’t think it’s going to turn around saying strengthening the Fourth Amendment
will stop wrongful convictions or seriously slow them down. Except
in the extent that it tells police that they have to follow the rules. If you have a strong Fourth Amendment, it tells police that they have to follow
the rules. Generally speaking, that translates to less wrongful convictions
because when you see police or prosecutors violating the rules or acting as if
they are the law and to themselves, a lot of times you
do have the wrongful convictions that follow. At a cultural level it makes
sense. But analytically the Fourth Amendment and wrongful convictions to me
don’t go together except in the false confession arena. And again that’s more
fifth amendment.

Denise: Okay, hey before we leave this topic of whether
you can NSA-proof your phone entirely, I wanted to highlight an email we got
after episode 257 with Bruce Schneier. Bruce was skeptical when I asked him
whether you could really accomplish what iDrive was claiming on its billboard
to be NSA-proof. His quote was it would be the first company in the history of
mankind if there were no laws in their security to really be able to make it
NSA-proof. Our listener/viewer Obby Becker took issue with that and sent me a
long email about his take on encryption techniques and thought that if someone
really were to think about it and do it right, you could make a product that
was NSA-proof. So I’m not going to go into too much detail; it was a very
lengthy email, but his point was just to push back on that notion that it
couldn’t be done. And also to highlight episode 448 of Security Now where Steve
Gibson talked a lot about Apple’s keychain cloud storage system and having two
different encryption systems. One used for everything and
very strong. And the second encryption system that according to Obby
does not seem to have any purpose and is clearly weak. So I’m not quite sure
what the point is there, but he does think that you could do it if you wanted
to. And it seems that Apple and Google want to do it. So we’ll have to see
exactly how this all plays out. And I think we’ll put our first MCLE passphrase
into the show and make it NSA-proof in honor of this discussion. If you are a
lawyer or another professional who is listening to the show and desires of
getting professional continuing legal or other education credit, we have some
information for you over at our Wiki at wiki.twit.tv. And we put these
passphrases into the show in case you have to demonstrate to your oversight
body that you did in fact listen or watch the show. If you’re doing that, we
thank you. We think it’s a good idea; we think we have all kinds of educational
material and wonderful folks like professor Starger joining us today. Right now
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much Personal Capital for your support of This Week in Law. So let’s see. Let’s
move on. This will kind of pivot from this, not quite
out of the privacy arena. But a little sideways to it;
certainly still in the constitutional arena. There was an interesting
article again by Orin Kerr, who we mentioned before in the Washington Post. Concerning the Silk Road prosecution and the data that is being
used there. And how it was obtained; this is a particular interest to
Orin Kerr because he represented Weev. I’m forgetting his actual name, Weev, in
a similar case involving something that was left openly available on the web. A
security hole that was not closed that was exploited to find information. Weev
was prosecuted for it, here the FBI has defended using research tactics like
this, evidence-gathering tactics like this. In order to
prosecute Ross Ulbricht for the Silk Road activities. So what Orin
Kerr’s point is, is that it’s quite interesting for the Department of Justice
on the one hand to say there was nothing constitutionally violative about what
we did. We found this IP address that was leaking from the site due to a
misconfiguration. And anybody could have found it and we just gathered whatever
information we could from the web. Which is precisely the
argument that was disserted on Weev’s behalf in his case. His case wound
up falling not convicting him on completely other grounds. I think it was a
venue-related issue; a totally procedural issue that didn’t get to the heart of
the computer fraud and abuse act which is ultimately what Weev was accused of
violating. So I thought this was a pretty interesting juxed position. I don’t
know if it’s more of a thought experiment but do you think DOJ, Colin, has sort
of tied one hand behind their back if they once again want to try to prosecute
someone under the CFAA for happening upon information that was not adequately
secured?

Colin: I think they have tied it a little bit. This is
what started out, in Orin’s article, starts out like a thought experiment. And
you’ve raised exactly the right question. It’s not about what happened in the
Silk Road prosecution and can they do that, although we should get into that a
little bit. But it’s more about what does this say going forward? In a way this
is a classic argument from hypocrisy. You can’t say A and then do not A later. The question is well when you resolve the hypocrisy you
can choose one side or the other. You can say that Weev’s actions were
perfectly fine under the analysis they’re giving in the present Silk Road case.
Or you can say that neither Weev’s actions were fine
nor are the Silk Road’s actions fine. However taking the side of law
enforcement just for a second which is not something I instinctively do, they
will point to two things. Orin points to one of them. The CFAA specifically has
a law enforcement section so if you are doing things that would otherwise
violate the CFAA in pursuance of a lawful investigation, you’re off the hook.
So they could point to that. As Orin points out in his article, they didn’t
actually do that here. But they didn’t need to. The second thing they would say
is listen law enforcement breaks the law all the time in order to catch law
breakers. You wouldn’t say that police can’t speed to catch speeders. So why
can’t they sort of hack about to catch hackers is the argument in a nutshell.
I’m not entirely convinced that in this case that their position which isn’t
articulated as well as Orin did, or you did, or even I did, in their briefing
wouldn’t have some consequences going forward. They seem to suggest that
publicly available data, if you just sleuth about, it’s not hacking. Sleuthing
is not violating the CFAA. You’re just looking at what’s there. I do think at
least a creative criminal defense lawyer faced with a prosecution of his/her
client under the CFAA in the future, should at least try to raise this. I would
have no doubt that the criminal authorities would immediately point to the law
enforcement exception in there. But it raises the general question about
government law breaking or government reckless activity. In his classic decent
many years ago before wiretapping was illegal, the Olmsted case just as
Brandise said that government should set an example. They shouldn’t violate the
law not just because it’s against the law because what example does that send?
While perhaps we should tolerate it while some policemen drive 75 miles per
hour to catch a 70 mile per hour speeder, they shouldn’t drive so recklessly as
to put other people in danger. The analogy isn’t perfect here but I do think it
raises some deeper issues that we should think about.

Ben: I think the question is made a little subtle only
because the actual CFAA violation or the actions by the Federal government in
sleuthing, which I think that’s an awesome
distinction. I’m going to adopt that, the sleuthing versus hacking. I think the
sleuthing they did would have been a violation if done by a civilian to another
website under the CFAA only under a very expansive reading of the CFAA. In
other words, the government took information that was leaking publicly, it
wasn’t that they hacked in, it was some sort of
information that was around the edges of the protected information. But it was
clearly intended by the Silk Road to be secret and they capitalized on that
information. That action of capitalizing on public information that was
intended to be secret, that is in the CFAA and I’m not sure if it’s in the
stature or only by traditional interpretation. But it’s a very subtle question
because it’s not so clear on a close-textual reading of the CFAA what they did
would not have been over the line. What the government did would not have been
over the line, except for this was intended to be private exception. And that
makes the question a lot closer because it’s much more about what the Silk Road
was putting out there. And I think you correctly hit it in the discussion we
just had. Questions like this always come up in the context of bad guys but
they’re really meant to protect good guys, that’s a
reciprocation. And that’s a similar problem here; I’m a brown-coat at heart. I
don’t think Silk Road is a bad guy. Little bit further, but on the assumption
that the legal assumption will have is that the Silk Road is a bad actor of
some sort. And you’re faced with this problem where the government engaged in a
behavior that was arguably not over even the line set by the CFAA. And then of
course there’s the fact that the CFAA itself has exceptions for law
enforcements. So it’s a tighter question than I think we can give it credit
for.

Denise: The problem though is that CFAA and again, Colin
would be more versed on this than I am, seems to have a history or rather a
notorious reputation of being expansively read by prosecutors to terribly dire
effect. So that for the Department of Justice to take the stance of doing
something akin to what they did here was not… and again they did not bring up
the CFAA I think in their briefing. They were all about the Fourth Amendment
and whether they were acting constitutionally. But I think the issue is a
prosecutor might read this entirely differently than Orin Kerr would. Do you
concur, Colin?

Colin: Absolutely and there’s no doubt in my mind that
this story, we’re even discussing this story, because Orin made a connection
that he could because he defended Weev. Because the government in the Silk Road
case said our actions are entirely lawful. And Orin said to himself well that’s
not the position at all you took in my case. But I don’t know if it makes sense
to go to one of the other cases that you have put in the potential rundown
because it just reminds me of it.

Denise: Sure, what’s it remind you of?

Colin: The anti-shredding case. The
Sarbanes-Oxley prosecution.

Denise: I wasn’t sure where we were going to fit that in.
The preservation of fish, it’s very important to talk about.

Colin:It’s prosecutors gone
wild. It’s this exact phenomenon. Prosecutors very
aggressively reading a statute if not incredibly creatively to find some room
to prosecute. And this story, the Sarbanes-Oxley, the basic outlines of
which involved a guy that was fishing. And he got a number, I think 72 fish that he wasn’t allowed to catch because of the particular
fishing regulations. And the fishing wildlife service said we’re going to write
you a ticket. Forgive me if I’m messing the facts up a little bit, but
basically they said that we’ll write it to you back at the port. And when they
arrived back at the port, he only had 69 fish instead of 72. And they said
you’ve destroyed some of the evidence. And a prosecution was actually brought
against him under the Sarbanes-Oxley act which is generally reserved for as the
article that you have on the screen right now, for cases of massive financial misconduct
by institutions like Enron. And this is the so-called anti-shredding provision
that our man with the fish or the two fish missing was prosecuted under. And
what happened was that one of the lines of the particular section of the
Sarbanes-Oxley act prohibits destroying among other things any tangible object.
And I have no idea how this brilliantly creative and yet aggressively wild
prosecutor thought, hey I’m going to get this fish guy under the Sarbanes-Oxley
act. And he read it and he said…

Denise: It’s not the first thing that comes to mind.

Colin: No, again I don’t know if he happened to have been
doing a Sarbanes-Oxley prosecution the week before. It seems highly unlikely.

Ben: It’s a CLA class and some speaker in the CLA class
said you can even use it for any kind of evidence! And he just wrote that down
in a little book and he was waiting for that.

Colin: Yea, and if you’re an absolute literalist, he has
a fantastic argument. And so for, that prosecution has withstood scrutiny from
the court. But if you think the intent of Congress matters even just a little
bit, then it seems completely wild that this guy should be prosecuted under
this statute. But prosecutors have a huge amount of power. That’s something
that I see all the time in my wrongful convictions work. And when prosecutors
act well, it’s incredible how much easier things can go. I just had a case out
of Dallas, Texas where I work as a special assistant to the Dallas, Texas
conviction integrity unit. And that case went swimmingly because we had the
prosecution or rather the cooperation of the prosecutors. But when prosecutors
dig in their heels or come up with these aggressive theories, it’s hard to stop
them.

Denise: So is anyone else just stunned that this is
actually going to be heard by the Supreme Court?

Ben: In this article, he’s got the Court capitalized.
Here’s the question, we took out the Sarbanes-Oxley component which is
generally thought of as connecting with financial crimes and Enron, things like
that; I hate to come down on the fish guy, but there was some sort of
destruction of evidence. Whether or not I think it falls under that particular
umbrella of Sarb-Ox is a different question if that’s the way to go about it.
But there was arguably evidence being destroyed and some sort of wrong-doing. I
don’t know that under Sarb-Ox increases the downside, and I think that’s the issue. I think it’s the downside of anti-shredding under
Sarbanes-Oxley is worse, then there’s your problem.
There was however some sort of evidence destruction which is a problem with
criminal convicts. My tendencies aside, there are reasons for enforcement of
laws.

Denise: Talk amongst yourselves for a second; I’m still
fact-checking if this particular cert-petition which was filed got granted.

Colin: I think the article is about the cert-petition
being filed so I don’t know. It still could be granted but I don’t think it has
yet.

Denise: Okay, let’s see. I have overview of the U.S.
Supreme Court’s October 2014 term. Let’s see if it shows up as something.

Ben: Colin, I just want to know where on the map fish
law is going to go. You going to have a whole new
branch of fish laws.

Colin: Yea, we’ll call it a new current of Supreme Court
doctrine.

Ben: Oh, please. Please, really?

Colin: You’re embarrassed to be on the same show with me
right now.

Ben: I’m trying to think of a clever fish pun and I’m
not coming up with it. Which is disappointing to me and every one of my friends
is eventually going to watch this.

Denise: I found an article by Elizabeth Slattery at
Heritage and she is saying that this is part of the 2014 term. She says anyone
who uses Facebook, pays taxes, enjoys fishing, drives a car, or uses railroads
should take note of the upcoming Supreme Court term. The Justices will review
cases touching on these and other important issues during the Court’s term
beginning on October 6, 2014. So it appears to have been granted. We will hear
more on fish.

Colin: Fantastic.

Denise: I will add this to our discussion points at
delicious.com/thisweekinlaw/276 where you can read Elizabeth’s rundown on all
those interesting cases coming before the Court. And everything else we’ve
touched on and will touch on in the show today. One other privacy-related story
that I just wanted to mention: largely because it gives me the opportunity to
use another good MCLE passphrase when we’re done discussing it. But it’s
interesting too, it’s in California we have a law that will become law if the
governor does not take any action to veto it very soon here. It will come into
effect January of next year; and its acronym is SOPIPA. So apparently the
California law makers have no fear of unpopular Federal legislation that didn’t
pass. This is the Student Online Personal Information Protection Act and its
purpose is to reign in what can be done with data about students as more and
more technology is used in schools. So this would extend to any and all
databases that schools maintain on things like behavior, things like email, any
sort of student data would get protection under this new California law.
California as we’ve discussed on this show before tends to have pretty
extensive privacy-based laws. Personal privacy-based laws. This looks to be another one joining the phrase, SOPIPA will be our second MCLE
passphrase. Any thoughts on this, Colin?

Colin: You know I think it’s great to see the challenge
of dealing with big data taken up straightforwardly as the California
legislature has done. You’re much more familiar on what happens out there and
the trend so I can’t fit it into a bigger picture. And it’s no accident that
we’re seeing it start in this kind of more comprehensive way with children
because they’re among the most vulnerable and the ones where people can easily
think of scenarios where it will be misused. Overly
aggressive tracking or health-kind of issues. The only place where I
think it might backfire, and here I’m being completely sarcastic, it might somehow
help people from not vaccinating their children around Hollywood. But as
perhaps I shouldn’t have even said that.

Denise: That’s okay. Those are some of the best moments of
the show. Any thoughts, Ben before we move on?

Ben: I think the unfortunate acronym is the biggest
problem with this. And how it’s tied into the various SATO
and other legislation or legislative pushes. This is not tremendously
controversial; don’t give away children’s information, don’t make it
marketable. It’s going to face the same sort of problems technically that a lot
of legislation in this field comes up against which is how are you going to
technically make that happen. If you’re a provider of a certain service and
that service is provided not only to schools but also to the general public,
now you have to basically flag each account and say this one is a child in a
school and this one’s not. And it just doubles the work. It doubles the
regulatory compliance you have to engage in. That said, that’s where I think
the friction is at; you have technical problems complying with this law. The
law itself doesn’t seem that tremendously horrible.

Denise: Right, people like Google who are offering a
specific product for educational purposes, they might have an easier time
complying. Although they’ve certainly tripped over themselves
with their email product for schools already. That may be part of why
we’re seeing this kind of legislation in the first place. There’s also a
companion piece of legislation that I haven’t looked at very closely that deals
with the vendors themselves. If you are selling to schools, what sort of steps
you have to take. We’ll probably see more shake out on this early next year
when as you say, Ben, people who offer services that schools are using; and of
course often times the software vendor doesn’t have any control over who its
customers are. What are they going to do, right? This could be a bad outcome of
this kind of legislation. They might just have to write into their terms of
service that this piece of software isn’t for educational use. Because we don’t
want to have to deal with the headaches and problems of maintaining the data
like we’ve seen so many services who won’t even touch children under 13 because
of the requirements of COPA. Do you think that that could happen as an
unintended consequence of this, Colin?

Colin: I’m going to leave this one to you and Ben. You
have a much better handle on it than I do, to be honest.

Denise: Aright, so that’s my hesitation. I don’t know if
Professor Eric Goldman has written on this yet. But I know he will have good
thoughts on this as soon as I figure out what they are. Let’s move on to
Hollywood and the entertainment arena. Alright, apologies to
you both if you’re not as interested in this story as I am. We touched
on it briefly last week while it was still in the rumor stage that Mojang was
going to get purchased by Microsoft. That purchase has since happened. $2.5B later. And tiny little but very popular juggernaut
game company purchased by juggernaut Microsoft. So my fear in why it came up
last week is the different take on uses of the intellectual property that a
small independent game developer like Mojang might have versus Microsoft. And
Microsoft has made several noises that are encouraging but certainly don’t take
into account or address the whole world of wild and wholly intellectual
property use unlicensed specifically that makes Mind Craft what it is. For
those of you who don’t play Mind Craft or don’t have children who play Mind
Craft, it is a very enjoyable game that standalone, you can get a lot out of.
But the reason that it is the powerhouse that it is, the reason that it’s
getting purchased for $2.5B is because of the very open approach towards
intellectual property use that Mojang has taken. And has
allowed so many different types of things to be done with the game. Anything you can imagine exists in Mind Craft including all manners of
unauthorized trademarks, storylines, you name it. It’s an IP lawyer’s,
certainly an IP professor’s fantasy exam question. So we still don’t know what
will become of that. Microsoft has definitely made noises about how, despite
the fact that it’s already an Xbox game and it will continue to be, that they
will continue to make it available on other platforms as well. Which is a nice twist for Microsoft. So I just wanted to
toss it out there. Again, if this isn’t anyone else’s cup of tea, we can move
on to other things. Ben, do you find this interesting at all?

Ben: The only comment I think I have to add is, I think
if you remember two years ago when Yahoo bought Tumblr? There was a concern
then, the concern was I have pushed sharing content with Mind Craft but there
is a society, there is a whole atmosphere. There is a whole gestalt that exists
in Mind Craft; I am not personally concerned but I can understand the concern
of somebody that lives in that world to know that Microsoft is going to come in
and stomp on that. And as long as Microsoft respects that biosphere, that
ecology that has developed there and leaves it alone, then I think everyone’s happy. Microsoft is happy because it is actually going to get what
it bought. And the Mind Craft world will be happy because it will be left
alone. If Microsoft takes over and sends in its lawyers and starts to whatever
you do, driving-flying, whatever you do around Mind Craft, pointing to things
mainly, that’s a problem, that’s a problem; then it is to be hoped that another
Mind Craft will spring up somewhere. But this one will be crushed. And then
Microsoft will lose out because it will lose what it was purchasing. I don’t
think they’ll care; I think they’re worried about being sued.

Denise: The problem is that Microsoft can have the best of intentions of maintaining
this ecosystem that has thrived and sprung out and put out so many thousands of
tendrils; but Microsoft makes a far more attractive target for litigation than Mojang did. --

Ben: Right.

Denise: And so in order to just put up a shield around themselves, they may feel
compelled to do something about worlds based on Harry Potter and Spongebob and other people's game technology -- what am I
thinking of? There's, I think, just a plethora of Call of Duty servers in MineCraft.

Colin: (Laughs)

Denise: Just -- you name it; it's there. So Colin, do you think that they will have to
be the bad guy on the IP front simply in self-defense?

Colin: Yeah. Well, there's nobody that has deeper pockets than Microsoft, or very few
people. So I imagine there are some lawyers who are already licking their chops
thinking, Okay, this is a pretty good target now. And although we might
instinctively think, Okay, Microsoft -- they're going to be the ones that kill
awesome; maybe somebody else is going to try and kill awesome, and Microsoft
has to play defense. So you're certainly better suited to discuss the IP issues
than I am; but it does strike me that the game changes when the deep pocket at
the other end is Microsoft as opposed to a small little Swedish company.

Denise: Yeah.

Colin: On a totally separate side note, I am somewhat familiar with the game because I
have a nine-year-old child. And on an aesthetic note, I just love the fact how
well this thing has done. It shows that you don't need those high-faluting graphics to have a compelling game. (Laughs)

Denise: Right.

Colin: I've always thought that from way back when. It was all about how interesting
the interface was, not just how sexy the graphics were, and this stands as
living proof of that. So I'm happy for the company; I think they've got a great
game.

Denise: Yeah, me too. And they've been touting -- the nine-year-old sweet spot is
definitely there, and they've been touting the educational benefits of the game
and the fact that we're getting back to what software is used in schools. I
have definitely read reports of Minecraft being used in schools as sort of an
analytic tool, and Microsoft loves the fact that kids like it and the parents
like it because it's an iterative, imaginative create kind of space. So again,
it's just a question of how well they'll be able to preserve the universe that
exists now, which has a very hands-off approach to taking any steps to quelch users' desire to use other people's intellectual
property in the game. Anybody interested in the fact -- again, this is one we
can skip if it's just not fascinating to either or both of you; but I do think
it's worth noting -- it will be important to lots of people globally -- that
there has been -- again, this is just sort of a tacit thing that has happened,
and enforcement has been possible and not really cracked down on -- that NetFlix, the U.S. version of NetFlix,
is only supposed to be available to persons with a U.S. IP address. That is
very easily circumventable with a VPN, and there are
-- I don't know the numbers, but thousands of people around the world exploit
that loophole daily. The entertainment industry has now told NetFlix, We're going to put a stop to that. They want to
ban VPN services that allow access to NetFlix, and
they're somehow -- I mean, they call it piracy when you're accessing from an
unauthorized IP address. Okay. I kind of get where you're going for there, just
like it's piracy to have a movie that plays on your different region DVD
player. All of the various ways that the entertainment
industry tries to window and segment off who can see what when. This
seems to be just a species of that. Was this just inevitable, do you think,
Ben, that the entertainment industry would finally come in and say, Sorry, got
to do something about the VPNs?

Ben: I mean, I think -- I should expose a personal interest here, is that I have
VPNED my way to a lot of BBC Dr. Who stuff that's not available in the United States.

Denise: (Laughs) Yeah.

Ben: So I -- if the BBC's listening, it wasn't me. Pay no attention.

Denise
and Colin: (Laugh)

Ben: These are not the droids you're looking for.

Denise: Right.

Ben: But -- so I think you're use of the word "inevitable" is probably the
right one. This was a problem. The copyright holders, the entertainment
industry -- and I don't want to come off as totally against copyright holders.
A lot of my clients are copyright holders; a lot of us on this conversation are
copyright holders. They want to control and protect their interests, and
there's nothing wrong with that. And they want to limit what they make
available and where they make it available -- also nothing wrong with that. This
seems a little bit heavy-handed. It seems a little bit oppressive; but it's not
unexpected. I mean, once it became a sufficiently widespread activity to
pretend you were in New York whenever you were in Australia, then someone who
wanted to control that, someone who wanted to say, Okay. I only want it in New
York and not in Australia; they're going to come in and say, We need a way to stop this. They're approaching it by going to the major legal
providers. I think that's actually good because the existence of Hulu, the
existence of NetFlix, the existence of legal options
to otherwise illegal and ethically questionable activities -- streaming,
downloading, illegal downloading, things like that -- personally, I think as a
matter of sort of policy, I want to encourage them. I want to encourage those
options. And so going to them and saying, Look, this
is the deal. We'd like you to help us stop this, instead of turning around and,
let's say, suing NetFlix because they're making
something available overseas. Or instead of chasing down the individual end
users, which is -- see the RIAA cases and that nightmare.

Denise: Yeah.

Ben: I think it's the better way to go about it. Technically, I don't know how it's
going to work. I mean, right now, they can spot a VPN IP address; but at some
point, someone more clever than I is going to come with a mechanism by which
you can adequately mask that without choking the onion routers or something so
that it will be technically more difficult. But that's just the sort of traditional
Whack a Mole game that any content provider has to eventually play.

Denise: Right. And this comes down to sort of jockeying between NetFlix and the entertainment industry as to how much assistance NetFlix is going to give them and how much credence NetFlix will give the idea that VPNs equal bad and/or illegal conduct. Of course, there
are all kinds of perfectly valid ways you can use VPN, and businesses do it all
the time.

Ben: Right.

Denise: And lots of individuals do it all the time for perfectly legal and valid
reasons. So to get a company of the scope and reach of NetFlix to buy into the fact that we're going to block VPN access to the service is
sort of a staggering idea. Colin, any thoughts on this?

Colin: I think this was inevitable. Ben used the term "Whack a Mole"; we
could say cat and mouse. This seems just part of the game that goes on between
folks that try to -- I don't think anybody's arguing that folks that are using
the VPN improperly who wouldn't otherwise subscribe to Netflix have a right to
that; but that doesn't mean that people aren't going to try and have a lot of
fun trying to evade that. I'm not sure I agree with what I heard you say, that
you think this is going to sort of spell bad news for VPNs generally. It seems
pretty connected to the content that's being delivered. I don't know, though.

Denise: Right. I don't think it would do away with VPNs; sorry if that's how that came
across. But I do think that there's almost sort of a -- how do I phrase this?
It's perhaps overreaching by a private company to say, You may access our service if we can adequately identify your IP address and where
it is emanating from. I mean, I suppose private companies can make that kind of
decision, just like private companies can make the decision to plant an album
on -- (Laughs)

Colin:Ahh.

Denise: Again, I don't know how many people were impacted. I was not personally, and
I'm mystified as to why I was not because I actually checked, and I have
automatic downloads selected in iTunes and I have a whole plethora of i-devices. But I did not wind up with the U2 album. I don't
know what fortuitously let me off the hook there. But I do think that this is a
fascinating development because of the way that it -- of course there was
nothing illegal about what Apple did here. And if you read the terms of service
in great microscopic detail and had the time to go through however -- 40 or 50
pages of very small text it would take to do that, I'm sure that Apple and U2
didn't do anything that could be a legal issue for them. But people were so
taken aback by having something they did not ask for show up on their device
that Professor James Grimmelmann, wonderful,
wonderful thinker and writer, took the time to weigh in on it and say, You've
really got to think about this because people's expectations of how a service
is going to work are going to be jarred. And it becomes sort of a
pseudo-contractual thing, what you can do, what you can do to people's devices
without their consent. The whole story reminds me, and has reminded a lot of
journalists, of the disappearance of 1984 from Kindles that happened last year
or the year before. So this, I thought, was fairly interesting, certainly
topical this week. Ben?

Ben: I mean, I don't have -- well, actually, I just want to really quickly go back
to VPNs. There are a lot of good users for VPNs that are not about faking where
you are or somehow tricking people. I just want to make it clear that I don't
think that all VPN usage is for some sort of nefarious purpose. That said, I don't have a lot to add to what you just said and the Labritorium article. I think they both speak to something
slightly broader, which is that we as consumers of Internet services, whatever
that is, we have a conception of how things work. And when the facts sort of
bump into that conception, that's when we -- I'm saying we, but -- when I --
you know, I am bothered, and I don't know exactly what's bothering me. I didn't
get the U2 album; I have an Android device.

Denise: (Laughs)

Ben: I feel like I'm very privileged. I almost feel -- as many Android device users
will -- like, we have a sort of constant feeling of, Well, we're better than
you.

Colin: (Laughs)

Ben: But we're sheep not for being sheep. Separate discussion.

Denise: Right.

Ben: But this actually -- your segue was perfect because it
dovetails very nicely with the VPN thing. We think we're getting a service and
we use the magical intertubes and we get to that
service; and we want it to be neutral. We want net neutrality because that's
the way we think of it, and we want it to be not entirely caring about where
the origin point of my computer is because that's sort of what VPNs do at some
level. They make your computer think that my computer is somewhere else. And we
want our stuff to be left alone, and those are all sort of social conceptions
that we have built up, social constructions that we've built; and when they get
violated, it's very troublesome to us.

Denise: Yeah. It's something that businesses have to remind themselves all the time of,
even if it's not -- it's more an ethical and public relations and user
experience issue than it might be a legal one. Although, if you've got enough
lawyers in a room, you could start to have a discussion about when somebody's messing
with your device, there are ways to go after them legally. I don't know that
this would rise to that. But even here at This Week in Law, we had our own U2
moment with our very first episode of the show; and we didn't even realize, we
just sort of backed into it; and maybe that's what happened to Apple here.
TWIT, our flagship show on the TWIT network -- This Week in Tech -- was dark
that week, the week that we recorded the first episode of This Week in Law; and
so we all decided, Hey, no one's going to get TWIT in their RSS feed. Thousands
and thousands of people subscribe to TWIT. No one's going to get it this week.
Let's give them This Week in Law.

Ben: (Laughs)

Denise: So we did. (Laughs) And it upended lots of people's expectations. What the heck
is this? We've never heard of this. I think we were fighting back from the
backlash of, Oh, I've heard this show. It came to me instead of TWIT --
(Laughs) -- for weeks, if not months, after that. So I mean, I think that
people just stumble and move on, and maybe that's what happened with Apple
here. And it bears reminding that upending users' expectations is one of the
worst things you can do as a business. Colin, anything to
wrap this up?

Colin: Let's not let Bono, or Bonehead-o, off the hook here, either.

Denise: (Laughs)

Colin: I mean, I think he should have been -- the whole band should have been thinking
a little bit better. And I think the expectations point is a good one to end
on. People think they're being creative; they think they're being innovative;
and to the user, it feels just creepy. And maybe creepy's not illegal, but it's just not smart to do. You don't want your sort of devices
anticipating too many of your moves, though you like it if they anticipate
some.

Denise: Right. Hey, we have another story where we can talk about expectations and
things that feel creepy or illegal but may not be. And this one involves Yelp
and a pretty significant Ninth Circuit decision. Let me pull it up. I have not
committed the name of the case to memory yet. And it came out a few weeks ago;
we've been waiting to talk about it. But the crux of the
decision were various businesses -- I think there were perhaps several
plaintiffs. And they were put off by the fact that Yelp wanted them to
advertise on the Yelp site and came to them and said, We can do some things to help you if you advertise with us. We can surface
positive reviews, order negative reviews in a way that they have less impact,
etc. If you don't advertise with us, then perhaps you're not going to get that
kind of treatment. So they were sued for various claims, some of which are
still pending, including false advertising and security fraud; but the one that
Yelp won a big victory on was extortion. The plaintiffs maybe overreached and
said, we had to pay this money, or they were going to kill our business. And
it's a testament to how important Yelp has become to driving business to all
kinds of industries. But the extortion claim got knocked out by the Ninth
Circuit. And it's notable that there was also a section 230 discussion in the
trial court. This is the provision that insulates companies like Yelp from
being illegal, some of the illegal actions of their users. The trial court
thought that that was an important thing to consider here; the district court
did -- I'm sorry, the appellate court did not at all and simply just threw out
the extortion claim and found that that was not going to fly. So it's given
some security to businesses like Yelp that, while they still have to engage in
fair business practices and may have other ways that they can be liable for
manipulating what they do to people who are featured on their site, that extortion is going to be hard to find. So Ben, do
you have anything to add to this?

Ben: You got an awful nice podcast here, Denise. It would be a shame if something
happened to it, like a [unintelligible].

Denise: (Laughs)

Ben: I think that would be terrible. I think that's

Colin: (Laughs)

Denise: Did I mention that Ben's in New Jersey? (Laughs)

Ben: That's right. Exactly.

Denise: Yes.

Ben: Now everything goes black.

Denise: Right.

Ben: But I mean, it seems that -- I am of two minds. Yelp
is a business; Yelp is doing what -- Yelp is not doing anything that it did not
say it was going to be doing. Yelp is very open and says, These are the reviews. There is a concern because I don't think Yelp makes it clear
to the end client, to the users of Yelp, that we --
that Yelp -- will up-vote or down-vote, to use the wrong language; but will
move around the reviews. I go to Yelp, I assume I'm getting a fair
representation.

Denise: "Host and sequence" the reviews is the
language the court uses. So of course, hosting them --

Ben: I'm sorry. What'd you say?

Denise: Hosting and sequencing them. So the opportunity on Yelp's part both to make
something available on its site at all, and then how are you going to present
it on the site? Hosting and sequencing is what --

Ben: Hosting and sequencing.

Denise: Yes. What the court said they have

Ben: Well, I think -- I mean, if there's nothing clearly available as an end user, I
don't know that Yelp is doing the hosting and sequencing decision-making. My assumption
-- and it's an assumption, and I'm just an end user; I'm not -- I have no privity in here, in this situation. But my assumption is that
Yelp is posting reviews sort of neutrally; and that is, I think, as you
correctly say, that's an assumption, and that's an expectation that I have as
an end user; but that's nowhere in the contract; it's nowhere in the rules.
This tension as to what a private company can do and how it plays with the
expectations is a theme. In this case, I think, at the end of the article that
you posted, that you linked to, there's a mention of an FTC complaint from end
users. I think that's where, if something happens to fix this -- which I
perceive as a problem -- if something happens to fix this problem, it's going
to happen on that side. And at some level, Yelp and companies like that are --
I don't want to say deceiving, but they're creating some sort of confusion on
the consumer's side as to the unbiased nature of the reviews, as to the
neutrality of the reviews. I know that in the search engine world -- so search
engines have sponsored links and organic links; and there are constant
[unintelligible], constant tension, and constant sort of battles over exactly
where the line is drawn in terms of identifying what is a sponsored link and
what's not, what the color has to be, what -- does it have to be a line? Does
it have to be a different color of link? Does it have to be a different style
of link? Is it a safe sponsored ad or not? That's the direction I haven't seen
this conflict going in general.

Denise: Yeah.

Ben: I don't necessarily know that throwing the extortion claim out completely was
the right decision; but I am not on the Circuit Court, and no one has called me
yet.

Denise: (Laughs) All right. Well, and I made you put your phone away before the show, so
you're going to have to check when we're all done.

Ben: That's right. (Laughs) You never know. Depends on who's watching the podcast.

Denise: Yeah. I think that's a really good insight in that there are very strong
parallels between search results, which is how people used to find businesses
and decide who was going to get their business before sites like Yelp, and the
information that you now get from the Yelp or a Rip-Off Report or somebody else
who's in the business of making sure that consumers -- the way these businesses
sort of package themselves is if you're a consumer, we're going to make sure
you get the best business. You're going to see the reviews, you're going to see the stars. If you're looking for the best plumber in your
area, you're going to see the plumber that everyone loves. And I have picked
plumbers based on that, and they've been very good. I mean, the system seems to
work. There is a trust relationship that gets developed over time when you
actually have used the service, found someone great, perhaps posted your own
review that boosts that up, or if you've had a bad experience. So do you think
that legislators will be concerned with the quality of the kind of data that is
presented on those kinds of sites, and that this is not the end of this story?

Ben: Well, I think, in the case of the review, however, it's actually a stronger
case because reviews don't work unless I'm seeing all the reviews. It doesn't
-- there's an actual disconnect between what you say you're giving me if you are
a review site and you say you're giving me sort of reviews; and if you're not
giving me sort of an unbiased sampling of the reviews, then you're actually
undermining the value of even the ones you do give me.

Denise: Yeah.

Ben: And more than ~ search and more than in other things because in the review
thing, it's exactly what -- you're picking a plumber. You're looking for stars.
If I see a 4-star plumber, 5-star plumber -- I don't know how many stars are on
Yelp; I assume 5 stars, right? So if I see a 5-star plumber and I'm very
excited, it undermines the value of that 5-star plumber if there's another
plumber that's also a 5-star plumber but he's not on that page because he
didn't pay Yelp. That's going to work against what I think I'm getting when I go
to Yelp and what I rightfully think I'm getting when I go to Yelp and what Yelp
has told me it's given me. And that's where the regulation should or could come
in. It's going to be dangerous because of unintended consequences, but I think
that's the direction it needs to go.

Denise: Well, and I think we'll see this -- as you pointed out, Ben, similar arguments
made to what the search companies have always said. "Hey, we're a private
company. We can present results however we'd like." And at some point, regulators
and legislators have come in and said, No, you are the gateway to the world's
information, and there are some responsibilities that go along with that.
Colin, do you see us headed in that direction with review services?

Colin: Well, if you don't mind me switching the conversation ever so slightly because
the case involved two separate allegations. We've been talking about hosting
and sequencing, and the Ninth Circuit said that there was no extortion here,
this was just economic hardball, you can do it. And
some of the policy questions you've sort of been getting into. But as a civil
procedure professor, I just have to talk about the other allegation, which
involved the idea that Yelp employees were actually writing negative reviews
and using those negative reviews as part of this extortion scheme, or what they
were calling an extortion scheme. And the appellate court rejected that on
Iqbal/Twombly grounds, which is the 12B6, the
pleading standard. And I thought their reasoning in that part of the opinion
was outrageous and shows you the danger of those decisions. to get a little bit in the weeds, one of the plaintiffs was a pet kind of store
that does stuff for animals called Cats and Dogs; and they got two negative
reviews that they thought were just terrible. And one of the negative reviews
came from somebody that turned out to be a real person, Chris R; and the other
negative review was from Kate K. And Cats and Dogs said this Kate K review was
written by Yelp, and it's destroying our business and it's terrible, and
they're only going to get rid of it if we pay for advertising. And what the
court said was that it's not plausible that the Kate K review was written by
Yelp. They said that there's no specific allegation to show that. However, what
Cats and Dogs were able to plead was that Yelp employees had spoken about
writing reviews many hundreds of times, including to the New York Times. It was
a matter of public record. And the court said, Well,
there's nothing specific to connect it here. And again, as a civil procedure
professor, I thought, That's exactly what discovery is
for.

Denise: Yeah.

Colin: The plaintiffs should at least have had the right to find out anything they
knew about Kate K; because they didn't say it, but I'm quite confident that if
the Yelp employees had actually written that negative review and that was part
of this scheme, that goes beyond just the regular hardball that they said Yelp
has every right to play. So just -- this decision, kind of outside the realm of
tack and into the broader question of pleadings and what the plaintiffs have to
do in order to get to discovery to find out if somebody has wronged them, I
found this to be a troubling case because they had very specific allegations
that show Yelp has actually done this before. And just because they didn't have
a specific enough one here, I don't see how they possibly could have had it
without discovery.

Denise: Right. And for our listeners who are not lawyers, that means that they don't even have the opportunity on that claim to go forward and try
and prove it, to do discovery and see what they can learn about Yelp's tactics
along those lines and what specifically happened here. That claim is just out
of the case, and they're not allowed to pursue it anymore. So yeah, that's a
really good point and does seem like maybe was a step too far on the part of
the court. Can you give us, Colin, the court's justification for saying they
didn't meet -- the pleading standards are very lenient. You just basically have
to sketch out, have a -- well, why don't you give us the standard? You're the
civil procedure professor.

Colin: Yeah.

Denise: What do you have to put in a complaint to have it pass muster, so people know?

Colin: Tell you what. There's a map for that. The civil procedure pleadings doctrine
has changed quite a lot in the past few years. Back in 2007, the Supreme Court
handed down a case called Twombly which involved a
giant anti-trust allegation that essentially said all of the baby bells were
involved in anti-trust. And the court said, We can't
let this case go to discovery; it would just involve essentially looking at the
records of every single person who had a phone over 10 years in the United
States, which is just too big. And in so doing, they said it's not just that
regular notice standard; you have to state a claim that's plausible. And then
in a case that followed up a couple years later, Iqbal, they expanded upon
that; and now, the standard is that you have to show that your claim is not
just conceivable, that it's plausible. And judges are directed to evaluate
plausibility, given their own common sense and context, which is a wide, wide
open standard. So what the court did in this case is it said, If you look at common sense, if the first person was a real
person who wrote that review, then the second person who wrote that review is
also a real person. And they said that's just common sense, and that's just the
context. And I think that is not at all common sense; it's not common sense to
me. But that's the precise danger with the new pleadings standard that we have,
is that it gives too much license for judges, if they just don't see it
happening, they think it's not probable, they can justify dismissing a suit,
not allowing it going to discovery even though they're not supposed to. The
Supreme Court has also said this isn't a probability requirement. Judges aren't
supposed to decide whether they think it's likely or not; but they've given
them this out which the court took in this case. It's disturbing.

Ben: Isn't it

Denise: All right. We really appreciate your analysis on that front. I'm sorry, Ben. I
cut you off.

Ben: No, no. Isn't it the case, though, under the Iqbal/Twomblystandard, that they still have to take all the
allegations as if true. I mean, I -- Colin, I'm asking; I don't know.

Colin: No, that's absolutely right. So what the court did is it took the allegation
that Yelp has confessed to writing fake reviews in other cases as true; but
that didn't permit the inference, according to the court, that they did it in
this case. That inference was still implausible.

Ben: Wow.

Denise: All right. So definitely there's a lot to come, I think, on the front of what
review sites can and cannot do and what tactics are going to pass muster and
what people are going to be able to talk about in court, even, if they're going
to be able to get past the initial phase of filing a complaint and get into
trying to prove that really bad tactics are happening.

Let's end the show on a copyright
note.

(The intro plays.)

Denise: We've talked a lot about the monkey selfie case. Every copyright-interested
lawyer anywhere on the planet has talked a lot about the monkey selfie case.
We've probably talked too much about the monkey selfie case. But it's so fun,
and I had to just highlight on the show, because I have not yet done so, that
if you are as charmed by the whole monkey selfie situation as we all have been
in past months that there's actually a 3-D printed version of the Macaque in
question that is available from Shapeways. Some
enterprising person over there has now added yet another twist to the various
copyright ins and outs of who owns the copyright to the picture taken with the
photographer's camera by the monkey itself; and now, who gets to profit from
the 3-D printed version available for $15 on Shapeways that is just so cute, too. So I bring it up because Ben, you weighed in on this
over on a comment on the Likelihood of Confusion blog, so I wanted to get your
take on the whole question because even the copyright office, at this point,
has weighed in. So do you --

Ben: Well, the copyright is what --

Denise: Right. Do you agree with them or not?

Ben: Well, I think -- I mean, the copyright office, they weighed in in a 2,000-page
document about the various copyright procedures; and somewhere on -- I think
it's, like, the 50th or 60th page, they mention what can and cannot be
copyrighted or what can and cannot be considered authored. And they mention
specifically a photograph taken by a monkey. I actually think that they weighed
in too soon. I think they may have oversimplified matters. If you look at the
comments on that Likelihood of Confusion posting, there was a post over at a
blog called Duets Blog that I really think spoke to the issue. I'm not going to
recap my comment that -- it's very interesting for copyright lawyers, probably
not so interesting for anybody else. It's a lot of fun to think about, though,
this monkey taking a picture of himself. This statue,
however, is a law professor's -- I mean, it's awesome for a law professor.

Denise: (Laughs)

Ben: There is case law, there is very strong case law, that -- you make a statue
from a picture -- there's a Koons, a case involving
Jeff Koons. Where you make a statue from a picture, that is essentially a derivative work from that
picture. So the author of the picture the photographer -- in this case --
nobody, it seems to be determined -- I also think it's nobody -- has some
rights. And then the statue itself -- but then the question becomes, how much
of a slavish reproduction of simply trying to be accurate to the facts in the
world is the statue of -- as opposed to the photograph? And so the person who
developed the monkey selfie statue, Pete Bosdale, it
seems like, whoever developed this sort of set of instructions to create a
statue from the picture, they actually have added a layer of copyright
complexity.

Denise: Sure. They have CAD files in 3-D designs.

Ben: Exactly. And the CAD files describe a 3-D object which is itself subject to
copyright.

Denise: Yes.

Ben: So it's a sculpture that's subject to copyright that is a derivative work of a
photograph that would normally be subject to copyright but isn't because of the
-- the way I come down on it is the lack of agency on
the part of the monkey, which is a sentence I never thought I would say when I
went to law school.

Denise: (Laughs)

Ben: But there you have it. I think it's fascinating; it's a lot of fun. I will be
getting a statue. I will totally be getting one of the monkey statues; it's
going to go in my office, and I'm very excited for that.

Denise: Right. And just to be sure we're clear on your position, there is no copyright
in this photograph; correct?

Ben: Yeah. The question of the copyright of the photograph. Actually -- I mean, it is worth thinking -- the question of any kind of these sort of attenuated copyright creation claims -- excuse the
alliteration -- is always, in my opinion, a question of agency. The classic
case is, a painter takes his paintbrush and puts the paint on the canvas; and
there's no question that it's the painter that is making the choices that eventually
express themselves in the work. But with a lot of art -- forget about With photography, with computer-generated art, with a lot of
music now, a lot of things, there's no longer that direct connection. And so
copyright authorship has to reflect some sort of core value, and I think what
that core value is is the choices that the author or
artist makes. So if I set up a camera to take motion-triggered photographs and
a monkey walks by and he triggers that photograph, that, I think, is clearly a
case where I do have the copyright in that photograph; whereas, when the monkey
takes the picture itself, I don't think it exists there. And I think that the
critical issue is agency. At some level, I have made a monkey an agent of my
will by having it be motion detected as opposed to, in
this case, from what is described -- and we're going -- all of this discussion
is based on one blog post and one sort of ex-post analysis by the photographer
and what he did and what he didn't do.

Denise: Right.

Ben: In that case, from what I see, I don't think the monkey was an agent of the
photographer. So yeah, I don't think that this photograph is subject to
copyright; but reasonable minds may differ.

Denise: All right. And ToadSloth offers a solution in IRC
that the monkey should just incorporate, and then it will have rights that
otherwise maybe it might not have, hearkening back to these recent Supreme
Court decisions.

Ben: And apparently, there's enough interest in this that there might be some money
there; so if the monkey would like to contact me, I think my information is at
the bottom.

Denise: There we go.

Colin: (Laughs)

Denise: Hey, speaking of Supreme Court decisions, recent and otherwise, although Colin
is busy teaching and studying and doing all kinds of wonderful great things
that don't involve mapping the Supreme Court, one of the most interesting
things he's involved with is the Supreme Court mapping project. And that is
going to be our resource of the week this week. Colin, we have a bit of video I
think we could play to tee this up; and then we'll let you explain more about
it, if that makes sense.

Colin: Sure.

Denise: Okay. If we can

Unidentified Voice: Which video? I
haven't been told which video you're going to play, so ...

Denise: (Mumbles) It's the Vimeo video that -- can you see it on the screen now, before it plays?

Unidentified Voice: Oh, yeah, great. Yeah, sure.

Denise: Yeah, yeah, yeah. So

(The video begins.)

Colin (in video): The X axis plots
the date of an opinion. ...

Colin: That's the civil procedure -- that's the one explaining the exact doctrine I
was talking about.

Denise: Right.

Colin (in video): The higher on the
Y axis, the more liberal the pleading standard in that opinion. We'll also show
via arrows the citations of one decision to another, with the green arrow
representing a positive citation that follows the cited case; and a yellow
arrow representing the one that limits the cited case or calls it into
question.

Colin: I would skip ahead a little.

Denise: Okay.

Colin (in video): ... triangles
represent cases where a claim was found insufficient and dismissed under Rule
12B6.

Colin: There's a lot of set-up.

Denise: All right. Maybe we'll take a break here and skip up a bit; And we'll let you talk for a bit just, again, bearing in mind that a lot of the
people that listen to this show are not lawyers. Certainly, the Supreme Court
is in the business of making lots of interesting data available. It writes
lengthy, lengthy opinions with concurrences and dissents; and they all have an
impact on how the law develops and is applied. And you're trying to make some
quantitative sense of that data. Can you tell us how it works?

Colin: So there's a few different types of maps that I have;
but the basic idea is to -- lawyers often speak about lines of cases, and I
wanted to take that notion of a line and make it literal. But when it comes to
the Supreme Court, there's a fiction that all majority opinions are written by
the court as if there's no author. Everyone knows that there is an author; but
they later on refer to it as "The court did this in Citizens United,"
or "The court did that in Maryland v. King." But of course, as you
pointed out, there are often dissents; there are concurring opinions. And the reason
why we have dissents and concurring opinions is because the justices are jocking about trying to change the law. So the main --
original idea behind the mapping project was to try to tease out the competing
lines within a doctrine. So you might have a Fourth Amendment doctrine around
whether or not you need a warrant, and there's certain
majority opinions that would suggest that you don't need a warrant; and there's
other majority opinions that would suggest that you do. And then there's dissenting opinions in the other cases that are kind
of flying the flag of those competing schools. And so what I've done is work on
a way -- I've got a visualization tool working with Darren Kumasawa,
an old high school friend of mine who continues to be a computer programmer.
We've got a visualization tool that lets you plot competing lines of opinions;
and then we've also been working on a mapping library that shows lots of
different areas of doctrine using the schema that we're talking about. So
you're showing the video from a line about pleadings doctrine, which we were
just talking about before, Iqbal and Twombly. It's a
video I did with Professor Scott Dodson over at UCHastings,
who is an expert in the area of civil procedure much more than I am; and we
trace how that doctrine has developed. And I'm currently involved in -- before
the first Monday in October, there'll be a new release of the mapper that has
new types of maps that combine it with the supreme court database, the so-called Spaeth database, and plot
decisions using their methodology which a lot of imperical scholars of the court use. So it's a project that both has a visualization
element and a substantive element about different doctrinal areas of the court;
and its goal is to help people have a more nuanced understanding of what's
going on, that it's not just the monolithic court doing things; rather, it's
opinions that have authors staking out positions that are more or less
controversial. And the basic visualization will let you see whether it's a very
controversial case, a 5 to 4, or quite a unanimous case, 9 to 0. You can see
that instantaneously using the tool.

Denise: Well, it also, I think, would be interesting to anyone who's developing a
Supreme Court fantasy football league where you were all about trying to ballpark
where a decision was going to go. Of course, we don't know until the decision
comes out who's going to author what; but it certainly gives you a lot of
insight into the court that you might not have if you didn't look at the
mapper. I'm looking at your mapper library now, and there are lots of broad
topics like the Fifth Amendment; the Fourth Amendment; same-sex marriage; right
to privacy; the origins of Roe v. Wade. That would be an interesting one to
delve into. So is your goal to just continue doing this on the big issues that
come before the court or all the issues that come before the court?

Colin: It's moving to -- I wouldn't go to all the issues but more and more. One of the
-- the next generation of the mapper which, as I
said, is going to be released fairly soon, is doing an automated network
analysis. The prior one was very -- the current version, let's say, is very
dependent upon the user doing all the reading his or herself; and that's a
laborious process. And so kind of the idea of computer-assisted network
generation is what I'm working on now, to give users a quick snapshot of what's
going on to be able to locate the key dissents or the key majority opinions
that are hubs in larger networks. So we're using kind of a "six degrees of
Kevin Bacon" algorithm, connecting two cases to each other over time.

Denise: (Laughs) Well, it's really, really cool, super ambitious. Love that you're
doing it. For anyone else that wants to dive in and see what's there and -- do
you have some sort of a way that people can help you with the project?

Colin: Yeah. I allow users to use the software; and in fact, I've just managed to get
representation from the Software Freedom Law Center, I believe, so to get up
some licensing agreements. But the basic idea is that it's free for people to
use; exactly how that works out hasn't been done. So I'm looking for people to
contribute to the library, people that were interested in using the tool. It's
not quite ready to go, but in two or three weeks, I should be there.

Denise: Very cool. It's available at the University of Baltimore Law School site. It's
got kind of a lengthy URL, so I would suggest that you go to delicious.com/thisweekinlaw/276 because it is there along with everything
else that we've been discussing today. Or you could just Google "SCOTUS
mapper" because that's going to bring you there, too.

Colin: (Laughs)

Denise: And I have a tip of the week for you. It's kind of a twofold tip of the week.
It has to do with Facebook; and it sort of resonates with a couple of the
stories we've discussed on the show today dealing with trust and expectations.
And the first one is — this definitely made the social media rounds. I'm hoping
lots of you already saw it. If not, I want to highlight it for you because it
was a fascinating experiment that a Dutch student named Zilla van den Born — if I'm saying her name correctly — conducted. And what she did —
and again, the reason this worked is because she's posting things to her
Facebook page, and she's an individual; she's not a corporation. She is not
sponsored in any way. This was an academic exercise she went about at the
suggestion of one of her professors, I believe. And what she decided to do was
fake her Southeast Asia vacation. She never left Amsterdam, but she went around
to restaurants and Buddhist temples and riding around in taxi cabs with Asian
drivers. (Laughs) And jumped in the pool at her apartment and photoshopped in some fish.

Colin: (Laughs)

Denise: And it was just a brilliant, brilliant exercise. Not even her parents knew that
she was not in Southeast Asia as she did this. And she did it to point out that
it's very possible, without too much effort, to entirely mislead people with
social media; and I think her point was that all that you — I don't know about
you guys, but every one of my Facebook friends live a far more dramatic and
exciting and glorious life than I do based on all of their photographs and
adventures. And I think that was part of her point, is that — take it with a
grain of salt when your friends are off on these fabulous trips. (Laughs) And I
think the other point to be drawn here is just that when you have someone's
trust to the extent that you do in a relationship as you do with friends on
Facebook, it's really possible to pull the wool over their eyes. And I think
that goes to why it's so important that the FTC has disclosure guidelines that
we were discussing earlier when you have to very clearly disclose what is
sponsored and by whom. And so that is part of the tip. Part of the tip is to take
what you see on Facebook with a grain of salt.

Part 2 of the tip has to do with how
durable that information is. Facebook is rather notorious for not making your
posts searchable in a useful way. It all sort of streams down people's news
feeds and your page and then becomes difficult to find when you go and you use
Facebook search. For example, my father is interested in a stand-up desk. He's
having some back problems. He is not working in the tech industry in Silicon
Valley, as you might guess from the notion of having a stand-up desk. Tom
[unintelligible] did a really funny article about how the stand-up desk is the
new [unintelligible] chair, but I digress. (Laughs) My dad wants a stand-up
desk. I think Evan, if we had him here today — we're still missing him — uses a
stand-up desk these days, which is good. Good for your posture, helps you stay
engaged and avoids back problems. So I know that Robert Scoble just recently got this fabulous new stand-up desk, and he loves it. And I, to
assist my father, really wanted to find the name of the specific desk that he
was using. Impossible to do using Facebook search now. But Facebook has been testing a way that one's Facebook friends or anyone with
access to that particular post might be able to search them in the future.
Right now, they've been testing it on mobile, and still very limited release
and not available to the general public at all. But it's — I think it was
Gawker or one of — maybe not Gawker — Engadget said,
"This one's a no-brainer." (Laughs) Why haven't they done it yet? But
it is coming, and in the news recently is how they've been testing that on
mobile. So Facebook data is getting both more searchable, hopefully in the near
future; and you need to be careful about taking it literally because someone
might be faking their Southeast Asia vacation. That was a rather long tip, but
I thought both those stories were interesting and worth highlighting.

And with that, I think we'll go
ahead and wrap up the show. Sorry, Evan, we missed you so much. And you're not
going to see me or Evan next week because we're going to be dark next week.
Both Evan and I have schedule conflicts on the 26th. But we will see you the
week after that. And I just —even without our Evan, who keeps me on track and
has so many brilliant things to say, this has been such a fun show. I really
appreciated meeting you, Ben. Ben got in touch — and this is a good cautionary
tale for you.

Ben: (Laughs)

Denise: I always encourage people to get in touch with me after the shows if they have
a comment or something to say; but if I decide that you're an interesting IP
lawyer, I'm probably going to ask you on the show, and that's what happened to
Ben. (Laughs) He got dragoooned into coming on the
show.

Ben: I have to say that I am — I said it in the email, and I'll say it again. I'm a
tremendous fanboy here; I've been trying to squash it
down. I've been listening — I listen mostly in audio; I don't watch. So I've
been listening to the show for a while, and I was very excited to get the
email. It was a squee-worthy moment. It was
tremendous.

Denise: (Laughs) Squeeee! I'm so glad that you could join us;
it's been really fascinating talking with you. And I'm sure that we'll have the
opportunity to do so again. If, like Ben, you want to — I forget; Ben, you were
— what did you get in touch with me about? It was something you —

Ben: It was the circuit split on the registration requirement on the copyrights.

Denise: Yes. That's right.

Ben: I was actually tip of the week for 274, I think. (Laughs)

Denise: You were, indeed. That's right.

Ben: That's going on my website as a badge of honor.

Denise: Good. So if you want to follow in Ben's footsteps, please do get in touch with
us between the shows. I'm denise@twit.tv; Evan is evan@twit.tv. You can find us
both on Twitter. I'm @dhowell there; Evan is @internetcases there. And go find our Facebook and Google+
pages, too, because that's where you can communicate with us in more than 140
characters. That's always good, too.

And also, Colin Starger,
it has just been a joy chatting with you. I'm so interested in your mapping
project and in all of the work that you're doing at the University of Baltimore School of Law. It's just been a pleasure.

Colin: It's been wonderful for me to be on the show. I've really enjoyed meeting you
and Ben. It's a — great, great, great topics for discussion. Really
interesting.

Denise: Before I let our guests go, I always just check in with them and see if there's
anything hot on their agenda they want to let people know about before we sign
off and get out of here. Colin, anything going on at the
school or any particular things with the SCOTUS mapper? I know you have
the new library coming out soon.

Colin: Yeah. New library coming out before the first Monday in
October. I think folks should pay attention to the news out of
Philadelphia next week. There's going to be an exoneration, I believe, of a guy
named Anthony Wright that I was involved in; and I think the story about PACER
taking down a lot of the records might start growing up next week, so that's
worth looking at as well.

Denise: Okay. Good to know. Ben, anything on your plate?

Ben: I have a couple of sort of popping cases or client matters that actually I can only
discuss in sort of vague hand-waving ways.

Denise: (Laughs)

Ben: But no, I'm actually — quite honestly, I'm going to go look at the mapping
project to see if I can get involved and help out with that at all. It's
brilliant; I think it's fascinating. That's my big thing for this coming week.

Denise: It is; it's really cool. All right. So we have been
recording this show here. We started at 11:00 Pacific Time, 1800UTC, on a
Friday; and that's when we do our show. So if you'd like to join us live, we
hope that you will. It's really fun to have a live audience. And jump in chat
and give us tips and jokes and everything else. But if you can't, don't worry
about it; we have the whole archive of shows for you, too, at twit.tv/twil; at YouTube.com/thisweekinlaw;
in iTunes; and hopefully, nobody's — CBS is going to keep fighting the good
battle about distributing the show in what one would consider netcast or podcast form. So we're in all of those forms and
on Roku as well; so definitely find us in a way that makes sense for you. Use
your VPN or not; we don't care. (Laughs)

Ben: (Laughs)

Denise: And we just love having you come back. We hope you'll do so, not next week
because we're going to be dark, but the week after that by which time it will
be October. So we will see you then! Take care.